Citation: Layton Eldon Manning v. The Queen Date: PESCAD 26 Docket: AD-0861 Registry: Charlottetown

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1 Citation: Layton Eldon Manning v. The Queen Date: PESCAD 26 Docket: AD-0861 Registry: Charlottetown PROVINCE OF PRINCE EDWARD ISLAND IN THE SUPREME COURT - APPEAL DIVISION BETWEEN: LAYTON ELDON MANNING AND: APPELLANT HER MAJESTY THE QUEEN RESPONDENT Before: The Honourable Chief Justice G.E. Mitchell The Honourable Mr. Justice J.A. McQuaid The Honourable Madam Justice L.K. Webber James J. Hornby Darrell E. Coombs Counsel for the Appellant Counsel for the Respondent Place and Date of Hearing Place and Date of Judgment Charlottetown, Prince Edward Island June 25, October 15, 2001 Charlottetown, Prince Edward Island November 1, 2001 Written Reasons by: The Honourable Chief Justice G.E. Mitchell Concurred in by:

2 The Honourable Mr. Justice J.A. McQuaid The Honourable Madam Justice L.K. Webber

3 Citation: Layton Eldon Manning v. The Queen Date: PESCAD 26 Docket: AD-0861 Registry: Charlottetown LAYTON ELDON MANNING AND HER MAJESTY THE QUEEN APPELLANT RESPONDENT (5 pages) Before: Mitchell, C.J.P.E.I.; McQuaid, and Webber JJ.A. Heard: June 25, and October 15, 2001 Judgment: November 1, 2001 CRIMINAL - Impaired driving causing death - Dangerous Driving Causing Death - Fresh evidence The Court of Appeal confirmed the appellant s conviction for impaired driving causing death but allowed the appellant s application for the introduction of fresh evidence with respect to the dangerous driving charge and as a result, ordered a new trial on that count. CASES CONSIDERED: R. v. Duguay, [1989] 1 S.C.R. 93 (SCC); R. v. Greffe, [1990] 1 S.C.R. 755 (SCC); R. v. Mellenthin, [1992] 3 S.C.R. 615 (SCC); Palmer and Palmer v. R., [1980] 1 S.C.R. 759 (SCC); R. v. Stolar, [1988] 1 S.C.R. 480 (SCC) STATUTES CONSIDERED: Criminal Code, s-s.253(4), s-s 683(1)(d), s-s.683(1)(e); Charter of Rights and Freedoms, s-s.24(2) James J. Hornby, for the appellant Darrell E. Coombs, for the respondent

4 MITCHELL C.J.: [1] Layton Eldon Manning appeals from the convictions entered against him following a trial by judge alone in the Trial Division on charges of impaired driving causing death and dangerous driving causing death. The charges resulted from a fatal car crash that occurred around 4:45 a.m. at Souris West in March Road conditions were described as damp, and it was foggy at the time of the accident. The crash involved a single vehicle driven by the appellant and containing one other passenger. The vehicle left the highway on a right-hand curve, went down an embankment, rolled, and broke two power poles before coming to rest in a horribly crushed and bent condition. Both occupants were thrown from the vehicle. The passenger died at the scene as a result of the injuries sustained. The appellant suffered much less serious injuries and was taken to the Souris Hospital. He was released later the same day. [2] At trial, the Crown presented evidence that at the material time of the accident the appellant was driving with a blood alcohol level of 189. This evidence was obtained as a result of a demand under s. 253(4) of the Criminal Code. This was not the only evidence pertaining to impairment but it certainly was important to the convictions on both charges. The Crown also presented evidence from Brian Lidstone, an expert in accident reconstruction who concluded that the appellant s vehicle was going at least 141 kph. when it left the road. This latter evidence was particularly important to the conviction on the dangerous driving charge. [3] The appeal is based on contentions the trial judge erred: (1) in ruling that the police officer had reasonable and probable grounds to make a demand for the blood samples pursuant to s. 254(3) of the Criminal Code; (2) in finding that the preconditions for a valid blood sample demand existed; (3) in the weight he gave to the expert evidence of the Crown s accident reconstructionist; and (4) in assessing the physical evidence of driving. [4] In connection with the latter two grounds the appellant, pursuant to s-s. 683(1)(d) of the Criminal Code, has made application for the introduction of fresh evidence from Allison Tupper, an expert in accident reconstruction and photographic interpretation, to challenge the Crown s expert evidence regarding the speed of the vehicle at the time it left the highway. [5] The trial judge gave close scrutiny to the issue of reasonable and probable grounds and ultimately concluded that, given all of the circumstances, the officer was justified in making the demand. Likewise, the trial judge carefully considered whether the blood sample analysis had been obtained as a result of any infringement of the appellant s constitutional rights and whether it should be excluded under s-s. 24(2) of the Charter. He found no Charter violation and allowed

5 Page: 2 the blood analysis evidence to be entered. [6] It is trite law that a trial judge s findings on matters of fact are not to be tampered with by an appellate court unless they are unreasonable. This injunction also applies regarding s-s. 24(2) applications. In R. v. Duguay, [1989] 1 S.C.R. 93 at p. 98, the majority of the Supreme Court of Canada said: It is not the function of the court, though it has the jurisdiction to do so, absent some apparent error as to applicable principles or rules of law or absent a finding that is unreasonable to review findings of the courts below under s. 24(2) of the Charter and substitute its opinion of the matter... This position was reiterated by Lamer J. in R. v. Greffe, [1990] 1 S.C.R. 755 at p.783 and in R. v. Mellenthin, [1992] 3 S.C.R. 615 at p.626, where the Supreme Court of Canada held that the Alberta Court of Appeal erred in overturning a decision on a s-s. 24(2) application where it did not appear that the trial judge made either an unreasonable finding of fact or an error in law. [7] In the case at bar I cannot find that the trial judge s decision not to exclude the blood sample evidence was the result of any error as to the applicable principles or that it resulted from any unreasonable finding. It might be that another judge, or this court if it was trying the matter in the first instance, might have come to a different conclusion but that does not mean the trial judge s conclusion was unreasonable, and it certainly does not give us the right to substitute our opinion. In my view, the trial judge took into account and considered all of the appropriate factors and, having reviewed the matter, I cannot conclude his findings regarding his decision to accept the blood sample evidence were unreasonable or based on an error of law. I would therefore dismiss the appeal as it relates to the charge of impaired driving causing death. [8] The appeal regarding the dangerous driving conviction requires the court to deal with the application for fresh evidence. That application was heard prior to the appeal but taken under advisement until the appeal itself was heard. The evidence being proffered is an opinion by Allison D. Tupper, a forensic engineer and reconstruction specialist who takes issue with the opinion of the Crown s expert Brian Lidstone and who concludes that the appellant s vehicle was travelling at kilometre per hour when it left the road as opposed to the speed of at least 141 opined by Lidstone. [9] In order for fresh evidence to be admitted it must meet the following four criteria set out by the Supreme Court of Canada in Palmer and Palmer v. R., [1980] 1 S.C.R. 759: (1) it could not have been adduced at trial through due diligence; (2) the evidence must bear on an important issue in the trial;

6 Page: 3 (3) the evidence must be reasonably capable of belief; and (4) the evidence must be such that if believed it could reasonably, when taken with the other evidence adduced at trial, be expected to have affected the result. [10] The due diligence aspect of the test is not to be applied so rigorously in a criminal case as in a civil one. In the case at bar the appellant s counsel was aware of Lidstone s opinion prior to trial. However, he was very much comforted by the fact that another Crown witness, Constable Doug Lee, the investigating officer, on direct and cross-examination had unequivocally stated on a number of occasions during the preliminary inquiry that he successfully negotiated the turn at which the accident occurred at speeds up to 180 kph. Since Lidstone opined that 141 kph was the critical speed at which anyone would lose control on that curve, Constable Lee s evidence would certainly cause the trial judge to seriously question the reliability of Lidstone s opinion. However, without any warning to the defence the investigating officer recanted his previous evidence when he got to the trial. I am satisfied that if the defence had been aware the officer would recant, steps could have been taken to get another opinion but in the absence of that knowledge, it was reasonable to believe it was unnecessary because the evidence as given at the preliminary inquiry by the Crown s own witness Lee would certainly seem sufficient to cast grave doubt on the validity of Lidstone s opinion. Accordingly, in my view, the defence cannot be faulted on due diligence grounds for not having Mr. Tupper s evidence available at trial. [11] The second element of the test for the admissibility of fresh evidence is that it must bear upon a decisive or potentially decisive issue. It is clear from his decision that the trial judge s acceptance of Lidstone s opinion that the appellant was travelling at a speed in excess of 141 kilometres per hour was a very important component leading to his finding of dangerous driving. Allison Tupper s evidence would challenge Lidstone s conclusions. It would offer the opinion that the vehicle was travelling at a much lower rate of speed when it left the road. Tupper would also say the accident was consistent with the vehicle going out of control due to inattention and that it was not consistent with sideslip arising from exceeding the critical speed of the curve as opined by Lidstone. I therefore have no hesitation in concluding that the fresh evidence meets the test of being relevant to a decisive or potentially decisive issue. [12] The third element of the test the proposed evidence must meet if its introduction is to be allowed is that it must be credible in the sense of being reasonably capable of belief. In this regard the court appointed Chief Justice DesRoches of the Trial Division a special commissioner under s-s. 683(1)(e) to inquire into and report on whether the evidence of Allison Tupper is credible in the sense of being reasonably capable of belief. The Commissioner heard the evidence of Tupper under oath and subsequently reported to the court that it meets the test of being reasonably capable of belief. On the basis of the Commissioner s report and on the affidavit of Tupper that is before the court, I am satisfied his evidence meets the standard of the third element

7 Page: 4 of the Palmer test. [13] The final aspect of the test that has to be addressed is whether Tupper s evidence, if believed by the trier of fact and taken with all the other evidence introduced at the trial, could reasonably be expected to affect the outcome. In my view the answer is that it could. Tupper s evidence substantially reduced the speed of the appellant s vehicle at the time it left the road from that opined by Lidstone. As well, Tupper s evidence suggests mere inadvertence as the cause whereas Lidstone s evidence indicates loss of control due to excessive speed. In my opinion it is reasonably possible that if the trier of fact accepted Tupper s opinion he or she might conclude that the manner of driving did not constitute such a marked departure from the norm as to constitute dangerous driving. [14] As the proposed fresh evidence meets all four elements of the Palmer test I would admit it. However, apart from finding that it meets the Palmer test I would make no comment about the weight of the new evidence as that will have to be evaluated by a trier of fact. The new evidence is not so clearly decisive or conclusive of the issues as to allow this court to dispose of the case without ordering a new trial. In R. v. Stolar, [1988] 1 S.C.R. 480, at para. 14 McIntyre J. said: Where, however, the fresh evidence does not possess the decisive character which would allow an immediate disposition of the appeal but, nevertheless, has sufficient weight or probative force that if accepted by the trier of fact, when considered with the other evidence in the case, it might have altered the result of the trial, the court of appeal should admit the proffered evidence and direct a new trial where the evidence could be heard and the issues determined by the trier of fact.

8 Page: 5 [15] Accordingly, I would set aside the conviction and order a new trial on the charge of dangerous driving causing death. The conviction for impaired driving causing death is confirmed and the appeal against that conviction is dismissed. The Honourable Chief Justice G.E. Mitchell I AGREE: The Honourable Mr. Justice J.A. McQuaid I AGREE: The Honourable Madam Justice L.K. Webber